Criticizing the Federal Communications Commission for failing to stimulate diversity through regulation, U.S. Circuit Judge David L. Bazelon called today for an emphasis on structural rather than what he called "behavioral" regulation of the media.
Delivering the keynote address at a two-day UCLA-sponsored symposium here on the future of television, Bazelon said new technologies "call into question time-worn assumptions about the need for government regulation.
"The FCC's policies such as intermixture (of UHF and VHF stations within a single market), restrictions on cable, and the fairness doctrine, have hindered diversity, suppressed creativity and fostered the domination of three large, but virtually identical, networks," complained Bazelon.
"Yet these networks, far from being a bulwark of independence from the government, have been made to cringe at the slightest questioning glance of the regulator. We reluctantly accepted content regulation in order to promote diversity, yet we have not achieved significant diversity, and all we are left with is content regulation," Bazelon observed.
The Appeals Court judge, lone regarded as one of the most liberal jurists in the nation, took particular aim at the fairness doctrine as an example of excessive regulation. The FCC policy, which was intended to prohibit broadcasters from promoting a single side of an issue, "has contributed to suppressing programming on controversial issues almost entirely," azelon said.
"'Rather than risk charges that they have covered only one side of an issue, broadcasters have chosen not to cover the issue at all," Bazelon said. Far from promoting diversity in programming, the fairness doctrine has reduced television programming to a homogenous, bland affair.
"'The record of 50 years of regulation suggests that the mandate to promote diversity is unfulfilled," said Bazelon, whose reesponsibilties as a 30-year veteran of the Appeals Court have included reviewing a number of FCC-related cases.
Technical limitations and scarcity of telecommunications technology, which were at one time used as the justification for regulation, are changing drastically; so should our assumptions about regulation, Bazelon argued.
"I join those who lament television's apparent inability to promote creativity and variety, but I fear direct government intrusion into program content even more," he said. "What promise telecommunications may hold largely depends on the market and the potentials of the new technology."